Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents


CHAPTER 3: Is the Law Working?

The balance between articles 8 and 10

28.  The courts have interpreted articles 8 and 10 of the European Convention on Human Rights as being rights of equal standing; neither party bears a burden of proof to show that his or her right (privacy or freedom of expression) trumps the other. Cases in which both rights are engaged are decided following an intense focus on the facts of the case and how each right applies to those facts.

29.  Some witnesses thought that the courts have given too much weight to the right to privacy in article 8, and insufficient weight to freedom of expression, especially as that right is exercised by the press. Witnesses from the press thought judges had become defenders of privacy and that their judgments had tilted towards that in recent years and months.[18] It was thought that it had been too easy to get through the article 8 gateway and too hard to get through the article 10 gateway.[19]

30.  Some witnesses thought that the balance may have previously tilted too far towards privacy, but that following recent judgments it had become more appropriately balanced.[20]

31.  The majority who commented on this point said that they thought the courts were striking the balance between the two rights correctly. The Lord Chancellor, the Rt Hon Kenneth Clarke QC MP, thought the balancing exercise had been about right,[21] as did a number of other witnesses.[22]

32.  We believe that the courts are now striking a better balance between the right to privacy and the right to freedom of expression, based on the facts of the individual case.

A privacy statute

33.  In recent years there have been suggestions that the courts are creating a privacy law "through the back door". The point was made forcefully by Paul Dacre, Editor-in-Chief of Associated Newspapers, in 2008—

"inexorably, and insidiously, the British press is having a privacy law imposed on it, which—apart from allowing the corrupt and the crooked to sleep easily in their beds—is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

The law is not coming from Parliament—no, that would smack of democracy—but from the arrogant and amoral judgements ...

[of] Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places."[23]

34.  The alternative to "judge-made" law suggested by some witnesses[24] is for Parliament to enact a privacy statute. That might help to counter such accusations by giving the law clear democratic authority. The Lord Chancellor said that the Government have an open mind about new legislation on privacy, but that clarity was needed as to what was meant by a statutory law of privacy.[25]

A STATUTE DEFINING PRIVACY

35.  A statutory definition of privacy would have the advantage of perhaps creating more certainty in the law: editors might be able better to assess whether a proposed article is likely to infringe privacy or not; similarly, potential claimants may have a better chance of knowing whether they will be successful before proceeding to court. Time and money spent on going to court might be saved. Examples of what counts as private information could be listed in the statute, making the right to privacy more accessible. In addition, any defects in the current law could be corrected.

36.  Any law that sought to define what is private would, in order to remain compliant with the European Convention on Human Rights, also have to set out that the right to privacy is balanced against the right to freedom of expression (and, potentially, other rights). There would then be pressure to spell out in more detail those rights and to define the public interest. There is a risk that definitions will not keep pace with developments in society. There is danger that any list will be treated as exhaustive, and so fail to cover information which should be protected as private.[26] Any list that purports to be exhaustive will imply that anything not in the list should not be covered. There would no doubt be litigation over the interpretation of the new provisions.[27]

37.  We believe that any statutory definition of privacy would risk becoming outdated quickly, would not allow for flexibility on a case-by-case basis and would lead to even more litigation over its interpretation. For these reasons we do not recommend one.

A STATUTE REAFFIRMING THE RIGHT TO PRIVACY

38.  It has been suggested that, while it would be extremely difficult to draw up a detailed legislative definition of privacy, there is value in a statute which restates the right to privacy in broad terms, giving it the clear imprimatur of Parliament and thus the democratic process. No longer would elements of the media be able to rail against "judge-made law", as it would have been endorsed by Parliament. If such a scheme were followed judges would still decide how to strike the balance in each case—the difference being that in so doing they would be interpreting a statute with clear and recent parliamentary approval.[28]

39.  However, the utility of going through the time-consuming process of legislating when it is not intended to change the substantive law could be questioned. The purpose of an Act of Parliament is to change the law; not to make a declaration. There would be the likelihood of satellite litigation on the effect of the new statute.[29]

40.  The laws around privacy already have statutory foundation. They have developed following the passing of the Human Rights Act 1998, which Parliament enacted in full knowledge that the common law would gradually develop a right to privacy in UK law.[30] During the passage of the Human Rights Bill through the House of Lords the then chairman of the Press Complaints Commission, the Rt Hon Lord Wakeham, moved an amendment which aimed "to stop the development of a common law of privacy".[31] The amendment was withdrawn. Replying to the debate on it the Lord Chancellor, the Rt Hon Lord Irvine of Lairg, said—

"I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to articles 10 and 8, giving article 10 its due high value. What I have said is in accord with European jurisprudence."[32]

41.  We do not recommend a statute declaring in broad terms the right to privacy. We disagree with criticisms that privacy law has been "judge made" and does not have parliamentary authority; it has evolved from the Human Rights Act 1998.

Determining the public interest in private lives

42.  Defining the public interest is no easier than defining privacy. The concept of the public interest is mentioned in a number of statutes, including ones concerning privacy,[33] but there is no comprehensive statutory definition. Witnesses cited instances where the courts have considered there to be a public interest in disclosure in cases based on copyright, defamation and breach of confidence. The issues cited include the business of government and political conduct; the protection of public health and safety; the fair and proper administration of justice; the conduct of the police; cheating and corruption in sport; involvement in serious crimes; corporate malpractice; the sympathy of a public figure with extremist dogma; and the correction of prior statements or misrepresentations by others.[34]

43.  If a public interest can be demonstrated in the revelation of private information, that will often lead to the courts striking the balance in favour of freedom of expression in that case.[35]

GUIDANCE ON THE PUBLIC INTEREST IN MEDIA CODES

BOX 2

Press Complaints Commission guidance on the public interest

(1)  The public interest includes, but is not confined to:

  i)  Detecting or exposing crime or serious impropriety.

  ii)  Protecting public health and safety.

  iii)   Preventing the public from being misled by an action or statement of     an individual or organisation.

(2)  There is a public interest in freedom of expression itself.

(3)  Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

(4)  The PCC will consider the extent to which material is already in the public domain, or will become so.

(5)  In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

44.  The Press Complaints Commission's Editors' Code of Practice's guidance on the public interest is in Box 2. The requirement in paragraph (3) for editors to demonstrate how and with whom they established that the public interest is invoked was added in December 2011.

45.  The Ofcom Broadcasting Code also contains examples of what may be in the public interest as a defence to its clause on privacy. Privacy in television and radio programmes is protected under section 8 of the Broadcasting Code, the principle of which is to ensure that broadcasters avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. The relevant provision, rule 8.1, is in Box 3.

BOX 3

Rule 8.1 of the Ofcom Broadcasting Code

8.1 Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.

Meaning of "warranted":

In this section "warranted" has a particular meaning. It means that where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public.



46.  Neither the PCC nor the Ofcom codes' definitions purport to be exhaustive. Both contain examples that are themselves open to interpretation. Both allow for the publication of material that may not itself demonstrably be in the public interest: the PCC's code by way of the statement that "there is a public interest in freedom of expression itself";[36] the Ofcom code by allowing a broadcaster to justify material as "warranted" on grounds other than because it is in the public interest.

DEFINING THE PUBLIC INTEREST

47.  Most witnesses who favoured a statutory privacy law favoured a statutory definition of the public interest, to be included as part of the same law.[37] Some thought that a definition could easily be drawn from existing codes that tend to differ in length and scale rather than substance, such as the BBC Editorial Guidelines, the Ofcom Broadcasting Code and the Press Complaints Commission's Editors' Code of Practice.[38] A statutory definition could aide clarity and enable Parliament to set out what constitutes the public interest.[39] It would give greater certainty to individuals and the media, and potentially head off litigation.

48.  Similarly, most witnesses who were against a privacy law were not in favour of a statutory definition of the public interest.[40] The arguments against them are largely the same: that any definition would either be so rigid that it could not keep pace with social mores or so loose as to make it almost meaningless;[41] that the current interpretation of the public interest used by the courts is adequate and reasonably clear;[42] that cases would still have to be determined by judges based on the specific facts;[43] and that any new definition is likely to lead to satellite litigation.[44]

49.  The worst excesses of the press have stemmed from the fact that the public interest test has been too elastic and has all too often meant what newspaper editors want it to mean. We heard that both Ofcom and the BBC Trust use more detailed definitions of the public interest and apply their public interest test with greater consistency.[45] We believe that all relevant regulatory bodies should now adopt a common definition of what is meant by the public interest that should be reviewed and updated regularly.

50.  We do not recommend a statutory definition of the public interest, as the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases. As an alternative, we expect the reformed media regulator, in conjunction with other regulators, to publish clear guidelines as to what constitutes the public interest, and to update them where necessary.

Injunctions and section 12 of the Human Rights Act 1998

51.  Interim injunctions are an important remedy in privacy actions, since once information is public, its private nature cannot be restored; it is not possible to undo a breach of privacy. Preventing a story appearing in the first place will usually be more important to a claimant than obtaining damages after the event. The situation can be contrasted with defamation, where injunctions are virtually impossible to obtain[46] and where a claimant's reputation may be vindicated by an award of damages, unless the defendant proves the truth of the defamatory allegations or succeeds with some other defence.

52.  The conflict between articles 8 and 10 was of concern during the passage of the Human Rights Bill in 1997-98. There was speculation about how the courts might interpret the right to privacy without further guidance. In particular, there were concerns that the courts might be too ready to grant claimants injunctions to prevent publication of a story which the claimant alleges infringes their right to privacy. There was unease about the effect on the media if injunctions were too readily obtainable, leading to the media not pursuing stories which may be in the public interest for fear of having an injunction issued on them. In response the Government introduced what became section 12 of the Human Rights Act 1998. The text of section 12 is in Box 4.

BOX 4

Section 12 of the Human Rights Act 1998


12  Freedom of expression

(1)  This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)  If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—

  (a) that the applicant has taken all practicable steps to notify the respondent; or

  (b) that there are compelling reasons why the respondent should not be notified.

(3)  No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4)  The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

  (a) the extent to which—

   (i) the material has, or is about to, become available to the public; or

  (ii) it is, or would be, in the public interest for the material to be published;

  (b) any relevant privacy code.

(5)  In this section—

"court" includes a tribunal; and

"relief" includes any remedy or order (other than in criminal proceedings).


53.  Section 12 has four features: subsection (2) seeks to ensure that defendants are notified of an application for an injunction (and thus can be represented at the hearing) unless there are compelling reasons not to. Subsection (3) requires the court to be satisfied that the claimant will establish at full trial that the right to privacy outweighs the freedom of expression in publishing. Subsection (4) requires the court to "have particular regard to the importance of the Convention right to freedom of expression". Finally, subsection (4)(b) requires the court to have regard to "any relevant privacy code". In a case concerning a newspaper this can mean the Press Complaints Commission's Editors' Code of Practice.

REQUIREMENT TO HAVE "PARTICULAR REGARD TO THE IMPORTANCE OF FREEDOM OF EXPRESSION"

54.  Subsection (4) of section 12 (was thought by some to make clear that freedom of expression should normally take precedence over the right to privacy.[47] Some witnesses were disappointed this had not happened in practice.[48]

55.  Others thought that it was never intended to have any real meaning.[49] Professor Gavin Phillipson of Durham Law School, Durham University, thought it did not attempt to establish priority for freedom of expression; had Parliament wished to do that it would have used more explicit language. Rather, he suggested that it made more sense to read it as requiring judges to give as much weight to freedom of expression as the Convention itself allows.[50]

56.  Section 12 has to be interpreted in the light of section 3 of the Human Rights Act 1998, which requires that so far as possible primary legislation, including the Human Rights Act itself, has to be interpreted compatibly with Convention rights. Therefore, as the Convention rights in articles 8 and 10 are of equal weight, section 12 has to be interpreted in accordance with that principle. Sir Stephen Sedley, a former Court of Appeal judge, said that section 12 requires the courts to have "particular regard"; "it does not say "overriding regard". The courts have had particular regard, in fact, to all the Convention rights when they have applied them."[51]

57.  Some witnesses thought section 12(4) an "anomaly" because it sought to create an imbalance between the two rights[52] and advocated its removal.[53] Other witnesses thought that it was appropriately balanced and was being correctly applied.[54] The Rt Hon Jack Straw MP, Home Secretary during the passage of the Human Rights Bill, said "there was never any question" that section 12 would give the courts a trump card in respect of one article over the other.[55]

58.  David Price QC said "If the purpose of section 12 was to give the benefit of the doubt to freedom of expression it has certainly failed."[56] However, if that was the purpose it would arguably be incompatible with the jurisprudence on the articles, which states that the two have equal weight.

59.  We do not think that section 12(4) of the Human Rights Act 1998, in requiring the courts to "have particular regard to the importance of the Convention right to freedom of expression" when considering whether to grant any relief, means that article 10 has precedence over article 8. The practical effect of the claimant satisfying section 12(3) (see below) means that article 8 does not have precedence over article 10. However, we support the decision of Parliament to make clear in law the fundamental importance of freedom of expression and would be concerned that removing section 12(4) might suggest that this is no longer the case. We do not recommend any alteration to the law in this area.

COURTS' WILLINGNESS TO GRANT INJUNCTIONS

60.  Section 12(3) requires the courts to grant interim injunctions only when "satisfied that the applicant is likely to establish that publication should not be allowed." The courts have interpreted this as meaning that the applicant will usually have to demonstrate that they are "more likely than not" to succeed at trial.[57] That is a higher threshold than in hearings for interim injunctions in respect of other causes of action.[58] In introducing the amendment that became section 12 Jack Straw MP said that "it is intended overall to ensure ex parte injunctions are granted only in exceptional circumstances. Even where both parties are represented, we expect that injunctions will continue to be rare, as they are at present."[59]

61.  Some witnesses thought the courts had been too willing to grant injunctions, especially anonymised or super-injunctions, or had granted them in the wrong circumstances. The Newspaper Society was "strongly concerned by the growth in the use and application" of them as they had "directly affected regional media coverage of issues of legitimate public interest."[60]

62.  By contrast, other witnesses thought they were not granted excessively or lightly.[61] Withers LLP thought the media created the impression "that they are handed out by judges as if they were sweets from a sweet shop."[62] Witnesses cited the media tendency to report all privacy injunctions, or at least all anonymised injunctions, as "super-injunctions".[63] Such descriptions do not match those proposed by the Master of the Rolls' committee.[64]

63.  The Master of the Rolls' committee stated that since the Terry case in early 2010 only two super-injunctions had been granted to protect private information, so far as they were aware. The committee sought to tighten up procedures for granting anonymised and super-injunctions, ensuring they were granted only when strictly necessary; requiring that they be kept under review, with a date set for the case to return to court; recommending that Practice Guidance be issued on the approach to them;[65] and requiring that when they are issued they are recorded and the data on them collated.[66] The committee also said that "anyone aware of a case where a super-injunction was granted without a return date, and/or where the proceedings have not been pursued, should raise the issue with the applicant's solicitors".[67] Since the publication of the Master of the Rolls' committee's report in May 2011 there appears to be less public concern about the prevalence of injunctions.

64.  Departures from the principle of open justice should be exceptional and should only happen when they are essential. We strongly welcome the arrangements made by the Master of the Rolls to monitor and publish figures on the number of anonymised and super-injunctions granted and the circumstances in which they are granted.

65.  We recommend that super-injunctions and anonymised injunctions that were granted before the Master of the Rolls' committee's report and are still in force are reviewed by the courts to ensure they are still necessary and are compatible with that committee's conclusions on open justice. Those reviews should be prompted by the courts writing to the parties concerned. Once reviewed figures on them should be published.

EFFECTS OF INJUNCTIONS UPON INDIVIDUALS

66.  Many injunctions have been taken out by celebrities, largely because they are more able to afford them than most people.[68] The press are often the defendants to injunctions, or at least are served with them. However, there can be other parties to injunctions: individuals who are enjoined by an injunction not to discuss private information.

67.  We heard evidence about the effect an injunction can have on such individuals. Alex Hall, the ex-wife of TV presenter Jeremy Clarkson, spoke about how "terrified" she was when she received an email with a 20-page injunction that had been obtained by her ex-husband against her.[69] She had no idea what an injunction was and had been given no notice of the application for one, even though section 12(2) of the Human Rights Act 1998 requires the claimant to notify other parties to the claim of their intention to seek an injunction unless there are "compelling reasons" not to notify.[70] She felt prevented from approaching publishers[71] about the material subject to the injunction; that meant there was no possibility of her obtaining advice from a publisher's legal team.[72]

68.  There are also concerns that super-injunctions can impede individuals from gaining access to funding for legal representation and from reporting malpractice or criminality to the relevant authorities.

69.  When an injunction is granted the court should consider fully its effect on individuals restrained by the injunction, such as the effect on their ability to seek legal advice or funding for legal representation, or to report relevant matters to the authorities. Guidance on this should form part of the Practice Guidance issued by the Master of the Rolls.

Cross-border enforcement of injunctions within the United Kingdom

70.  The United Kingdom has three separate legal systems: those of England and Wales, Northern Ireland and Scotland. Section 18(5)(d) of the Civil Jurisdiction and Judgments Act 1982 provides that an interim measure (including an injunction) obtained in one of the UK's jurisdictions is not enforceable in the other jurisdictions. Thus, an interim injunction obtained in the High Court in London is not enforceable in Scotland or Northern Ireland; separate orders would have to be obtained from those jurisdictions. However, final injunctions granted in one jurisdiction in the UK can be enforced in the other jurisdictions, by virtue of that same Act.

71.  This issue arose in the Ryan Giggs case,[73] where in the absence of a Scottish interim injunction (an interdict) the claimant's identity was published in the Sunday Herald, a Scottish newspaper, on 22 May 2011. The editor of that newspaper said that they had not breached the interim injunction because it did not apply in Scotland.[74]

72.  The Attorney General did not think there was a problem with cross-border enforcement; because separate legal systems are a fundamental part of the UK's national make-up, there was no way around the issue.[75] Others thought that the issue undermined respect for the law.[76]

73.  Witnesses drew attention to the cost of applying for an injunction in up to three separate jurisdictions.[77] It was suggested that a streamlined system for registering English interim injunctions in Scotland may assist.[78]

74.  We recommend that interim injunctions granted in one jurisdiction in the United Kingdom are enforceable in the other two jurisdictions in the same way as final injunctions are.

Privacy, celebrities and public figures

75.  An argument often advanced in the media is that certain individuals—particularly celebrities, sportsmen and politicians—make a living out of publicity and therefore should not be able to pick and choose when the media report on their private lives.[79] It is argued that some people open their private life to the media when it suits them (e.g. in order to promote a new film or album), so should not complain when other aspects of their private life are reported on. Other people by the nature of their work or position find themselves in the public eye, so should expect there to be interest in their private lives.

76.  Marcus Partington, Deputy Secretary/Group Legal Director at Trinity Mirror plc, thought there were categories of people who had less privacy rights than others, and that this was recognised by the judiciary and in the PCC code.[80] He pointed to the J K Rowling case, where a photograph was taken of her son. She had deliberately decided not to put him in the public domain; the court upheld his right to privacy but said the position would be different if she had decided otherwise. Richard Wallace, editor of the Daily Mirror, said that there were gradients of privacy and exposure to publicity that needed to be accounted for. He compared J K Rowling with Katie Price—aka Jordan—who "regularly commoditises" her privacy and that of her children.[81] Max Clifford, founder of Max Clifford Associates, agreed, citing the same example—

"You have to look at every situation on its own merits. A celebrity or a star who uses every means to promote themselves and their private lives to the public as part of their career—someone like Katie Price—does not deserve the same protection as a star who generally tries to keep his or her private life out of the media."[82]

77.  Some thought an individual did not waive their right to privacy by occupying a public role, but could have a reduced expectation of privacy if, for example, they parade their family before the cameras or invite magazine photographers into their homes.[83]

78.  Other witnesses stressed the importance of there being a universal right to privacy which is respected by the media. It should be a firmly established principle that article 8 applies to everyone, whether or not they are public figures.[84] However, it is largely accepted that there is a public interest in exposing hypocrisy if the creation of a false image enabled the individual to benefit financially or obtain a post they might otherwise not have.[85]

79.  Linked to the issue of disclosure of details of celebrities' private lives is the question of whether the courts are giving appropriate weight to the value of freedom of expression in celebrity gossip. The courts have held that there is a scale of freedom of expression, with political expression at the top end to pornography or the right of blackmailers to freedom of speech at the bottom.[86] The comments of the Rt Hon Baroness Hale of Richmond about "the most vapid tittle-tattle about the activities of footballers' wives and girlfriends [which interest] large sections of the public but [in which] no-one could claim any real public interest in our being told all about it"[87] suggests that gossip is towards the bottom of the scale.

80.  We believe that those who actively seek publicity, especially for gain, should accept that this will mean enhanced interest in their private lives by the media. This should not, however, mean that they sacrifice all rights to privacy. The degree of public exposure of an individual, and the extent to which they have sought it and gained from it, are relevant factors for the courts to take into account in determining a privacy claim. This will depend on the facts of the particular case.

81.  We reject the view that because an individual exposes his or her children to publicity the children become fair game for the media. We believe that parents who expose their children to public gaze for their own commercial gain or publicity are irresponsible and make it harder for them to defend their children's right to privacy in other circumstances. However, even in those instances there must be exceptional reasons for it to be in the public interest for the media to publish information affecting the privacy of children.

Commercial viability of the press

82.  As gossip in newspapers can help sales and thus enable journalism to continue to perform its essential role in a democracy, it might follow that the commercial viability of the press should be a factor when balancing the public interest in a story against an individual's right to privacy. If newspapers do not exist they cannot report on issues obviously in the public interest. This is a line of reasoning that has been acknowledged in some cases. For example, the Rt Hon Lord Woolf when Lord Chief Justice stated that "the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest".[88] Baroness Hale of Richmond has said that "one reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all".[89]

83.  The Chartered Institute for Journalists said that the commercial viability of newspapers should be taken into account "because good investigative journalism is expensive and has to be funded in some way."[90] Others agreed, observing that the UK press was financially independent from the state and thereby not at risk of state control by way of penalties or withdrawal of state funds. The press therefore relied on revenues from sales and advertising, which required the widest possible circulation.[91]

84.  Other witnesses did not think the commercial viability of the press was a valid factor in determining the public interest in stories. Max Mosley thought that it should never be a consideration as "the idea of breaching someone's privacy, with all the pain this can cause, for commercial gain is abhorrent and inhumane."[92] Schillings said that "The press would also be more "commercially viable" if (to give an extreme example) it had to pay no corporation tax, or could renege on an unprofitable contractual obligation."[93] Others thought that the newspapers which devoted most space to scandal devoted least to matters of genuine public interest.[94]

85.  Representatives of newspapers stressed that privacy was a factor they took seriously in considering whether to publish a story.[95] They did not claim that the financial situation of the press should give them carte blanche to publish what they like.[96] Some newspapers argued that if they started to publish lurid or excessively intrusive material that would put off their readers, and therefore worsen their financial situation.[97]

86.  Other witnesses did not think privacy issues played as prominent a role in editorial decision making in some newspapers as it should. Max Clifford said that the "British public desperately need protection from the excesses of the media".[98] Witnesses suggested that the majority of privacy cases are uncontested by newspapers.[99] Whilst the costs of doing so will be a factor, the implication could be that newspapers do not think they have a strong enough defence.

87.  We heard conflicting views about the role of proprietors and boards in ensuring privacy is respected through the culture and corporate governance arrangements of newspapers. Evgeny Lebedev, chairman of Independent Print Ltd and Evening Standard Ltd, felt that proprietors should take an active role in ensuring that news publishers uphold high standards;[100] other proprietors and boards were reluctant to be seen to be interfering in the editorial process.[101]

88.  Few newspapers consist solely of serious news stories. Most of them rely, to varying degrees, on some form of light-hearted reportage or gossip. It may not be easy to present a clear explanation as to why such articles are of themselves in the public interest, but it can be argued that without them readership of newspapers would decline even further.[102]

89.  The media play a vital role in furthering public debate, exposing wrongdoing and enhancing democracy. Whilst there is clearly demand for scandal and gossip, this should not stray into intrusion into people's private lives without good reason. Chief executives and boards of holding companies should take responsibility for ensuring that news publishers uphold high standards, with processes for protecting privacy firmly adhered to.


18   QQ 889 and 892. Back

19   QQ 39, 49 and 1234.  Back

20   QQ 405 and 1234; Lord Lester of Herne Hill QC. Back

21   Q 1027. Back

22   For example, Hugh Tomlinson QC from Matrix Chambers in his written evidence and at Q 65; Alasdair Pepper from Carter-Ruck solicitors (Q 68); Schillings; Lewis Silkin LLP; the Law Society; Hugh Grant para 14; Paul Ashford, editorial director at Northern & Shell Network Ltd (Q 589); Professor Steven Barnett, Professor of Communications at Westminster University (Q 119); and Professor Brian Cathcart, Founder of Hacked Off and Professor of Journalism at Kingston University London (Q 119). Back

23   Speech to the Society of Editors, 9 November 2008: http://www.pressgazette.co.uk/story.asp?storycode=42394. Mr Dacre repeated the suggestion at a seminar at the Leveson Inquiry on 12 October 2011, saying that "the Human Rights Act is resulting in the creation of a privacy law by judges". Back

24   Professor Julian Petley, Professor of Journalism and Screen Media at Brunel University and Chair of the Campaign for Press and Broadcasting Freedom (Q 405); Barnett (Q 119); Steve Coogan (Q 714); Max Mosley in his written evidence. Back

25   Q 1031. Evgeny Lebedev, chairman of Independent Print Ltd and Evening Standard Ltd, also said there was a case for Parliament examining whether to have a new law (Q 1137). Back

26   Q 519. Back

27   Lewis Silkin LLP. Back

28   Max Mosley supported such legislation (Q 702), as did Hugh Tomlinson QC. Zac Goldsmith MP thought that the process of passing a privacy law would enable Parliament and the country to have a proper discussion about the issues (Q 714). Back

29   Q 119. Back

30   Andrew Marr; Schillings. The Law Society said, "Parliament already effectively enacted a statutory privacy law when it introduced the Human Rights Act 1998." Back

31   HL Deb, 24 November 1997, col 772. In evidence to us Lord Wakeham suggested that both the Government of the day and the Conservative Opposition said they did not want to create a privacy law (Q 1). Back

32   Ibid., col 785. Back

33   For example, sections 58(7) (and other provisions) of the Regulation of Investigatory Powers Act 2000; section 31(3)(c) (and other provisions) of the Data Protection Act 1998. It is also referred to but left undefined in the draft Defamation Bill. By contrast, the Bribery Act 2010 contains no public interest defence, despite the Lord Chancellor being pressed to include one (Q 1025). Back

34   Scott. Lord Grabiner QC and Dr Kirsty Hughes of Cambridge University also cite cases where public interest arguments have succeeded and failed. Back

35   The contribution which publication of information in an article would make to a debate of general interest was described as the "decisive factor" in balancing freedom of expression against privacy in ETK v News Group Newspapers [2011] EWCA Civ 439 at [23]. The European Court of Human Rights used similar language in the first Von Hannover v Germany (op. cit., para 76). Back

36   Described by Professor Steven Barnett as "weasel words ... a get-out clause for essentially anything you want to publish" (Q 143). Steven Abell, then Director of the PCC, thought the words did not seek to create a "trump card" for freedom of expression, and that to cite that clause and say "everything is therefore fair game ... would be ridiculous" (Q 777). Back

37   For example, Tomlinson; Lebedev (Q 1137). Back

38   Barnett. Back

39   Q 700. Back

40   For example, the Media Standards Trust; the Society of Editors; Lester. Back

41   Berrymans Lace Mawer LLP. Back

42   Lewis Silkin LLP. Back

43   Grabiner and Hughes. Back

44   Q 296; Channel 5. Back

45   QQ 273 and 773. Back

46   The rule in Bonnard v Perryman provides that an interim injunction will not be granted unless it is clear that no defence will succeed at trial.

 Back

47   Society of Editors; QQ 890 and 908. Back

48   Q 2. Back

49   Q 119. Back

50   Phillipson. Back

51   Q 3. Section 13 of the Human Rights Act 1998 requires the courts to have "particular regard to the importance" of the right to freedom of thought, conscience and religion when determining any question which might affect the exercise by a religious organisation of that right.  Back

52   Barnett; Petley. Back

53   Petley. Back

54   Carter-Ruck para 20; Berrymans Lace Mawer LLP; Tomlinson; Lewis Silkin; Schillings; Mosley. Back

55   Q 2. Back

56   Q 50. Back

57   Cream Holdings v Banerjee [2004] UKHL 44. Back

58   American Cyanamid Co v Ethicon Ltd [1975] AC 396. Back

59   HC Deb, 2 July 1998, col 536. Back

60   Newspaper Society para 1. Back

61   Carter-Ruck; Dr Andrew Scott; Schillings; Tomlinson. Back

62   Withers LLP. Back

63   Phillipson. Back

64   See Chapter 1. Back

65   Practice Guidance was issued by the Master of the Rolls with effect from 1 August 2011. Back

66   Practice Direction 51F provides for a pilot scheme for the recording of data relating to non-disclosure injunctions with effect from 1 August 2011. Back

67   Op. cit., p v. Back

68   The costs of bringing and defending privacy actions are discussed in the next chapter. Back

69   Q 1672. Back

70   Q 1629. Back

71   "The injunction was in respect of a book Alex Hall proposed to write." Back

72   QQ 1695-7. Back

73   CTB v News Group Newspapers Ltd and Imogen Thomas [2011] EWHC 1232 (QB). Back

74   Q 223. Back

75   Q 1086. Back

76   Society of Editors; Lawyers for Media Standards. Back

77   Law Society; Schillings. Back

78   Law Society; Carter-Ruck. Back

79   Chartered Institute for Journalists. Back

80   Q 1242. Back

81   QQ 1251 and 1257. Back

82   Q 1470. Back

83   Tomlinson; Q 48. Back

84   Barnett. Back

85   Mosley; Marr. Back

86   Tomlinson. Back

87   Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44 at [147]. Back

88   A v B plc and C [2002] EWCA Civ 337 at [11(xii)]. However in McKennitt v Ash [2008] QB 73 at [62] the Court of Appeal held that Lord Woolf's statements in A v B plc cannot be reconciled with the decision of the European Court of Human Rights in the first Von Hannover v Germany (op. cit.) and so "cannot be read as any sort of binding authority on the content of articles 8 and 10" (at [64]). Back

89   Campbell v MGN (op. cit.) at [143]. Lester cites other judicial commentary on the matter at paras 34 to 36. Back

90   Chartered Institute for Journalists. Back

91   Newspaper Society para 30. Back

92   Mosley. Back

93   Schillings. Back

94   Petley. Back

95   Q 851 (Viscount Rothermere, chairman, Daily Mail & General Trust plc); Q 1275 (Richard Wallace, editor, Daily Mirror). Back

96   Q 271 (Matt McKenzie, editor, The Sunday Sun); Q 893 (Peter Wright, editor, The Mail on Sunday). Back

97   Q 605 (Paul Ashford, editorial director, Northern & Shell Network Ltd); Q 215 (Alastair Machray, editor, Liverpool Echo). Back

98   Q 1495. Back

99   Tomlinson (Q 66); Mr Justice Tugendhat (Q 487). Back

100   Q 1110. Back

101   Q 876. Back

102   Barnett. Back


 
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© Parliamentary copyright 2012
Prepared 27 March 2012